Editorial Note

In England the probate of wills of personalty was within the jurisdiction of the ecclesiastical
courts, although many related questions, both of administration and distribution,
had to be tried at law or in equity. The ecclesiastical courts had no power over wills
of realty, because the common law claimed exclusive jurisdiction of title questions.
Such wills were proved only if an action at law was brought to test the devisee's
right.

One result of this division of jurisdiction was that the validity of a will might
be brought again into question in an action at law despite presumably conclusive probate
proceedings. In Massachusetts the confusion was relieved somewhat by Province statutes
which gave to the judges of probate many powers in the administration and distribution
of both real and personal estates.1 Title was still a question for the common law, however, and in Clap v. Randall, the validity of Samuel Clap's will, previously allowed by the Governor and Council
sitting as Supreme Court of Probate (No. 15), was reopened and argued anew, apparently without objection. The action may have
been permitted either because lack of notice to the plaintiff, or his guardian, was
held to relieve him from the bar of the prior probate decree, or because the English
practice of not giving conclusive effect to such a decree was followed.2

The action was a plea of partition brought by the guardian of Michael Clap, minor
son of Samuel's deceased eldest son, against the testator's three surviving children,
Sarah Randall, William, and Samuel Jr. Under the will, Michael had received only a
£60 legacy, apparently because the testator had made inter vivos gifts to his father. The lands in suit had gone to Samuel Jr. and Samuel Randall,
Sarah's son. William Clap, who had contested the will in probate, had been virtually
disinherited. Michael's declaration ignored the will completely, setting forth that
Samuel had died intestate while seized of the lands and that Michael and the defendants,
Samuel's only heirs, were thus tenants in common in the premises. Although in form
the writ sought money damages for failure to partition, the suit was brought under
a Province statute permitting a cotenant to compel division of lands in an action
at law.3

The case came on for trial at Plymouth Inferior Court in April 1769, where Adams entered
a plea of not guilty for the defendants. Daniel Leonard's demurrer was overruled and
judgment entered on the plea. On appeal to the Superior Court at Plymouth in May 1769
the lower court pleadings were waived and Adams averred that the defendants “and the
Plantiff do not hold the said Premises together in common and undivided, as the Plantiffs
have above declared.” The case went to the jury.4 Adams' minutes of the evidence and arguments, printed below, indicate that the validity
of the will was the principal question argued. Witnesses for the plaintiff testified
both as to Samuel Clap's mental state and to the informal character of the document
itself. The authorities cited by Leonard are on these points, and James Otis, also
arguing for the plaintiff, directly raised the Statute of Frauds. That Act required
only that a will be written, signed, and witnessed, but Otis apparently argued that
its policy of preventing frauds through proof of the testator's actions should be
extended to bar a will with blank pages, which would give great opportunities for
later changes.

Adams, as he had in Clap's Will, brought forward authority dating from before the Statute of Frauds, to the effect
that wills with defects other than those covered by the Act were good at common law.
His principal source seems to have been Nelson's Lex Testamentaria, a treatise of doubtful value in which two of the three cases which Adams cited are
misstated in his favor, revealing the pitfall, not unknown today, that awaits one
who relies upon secondary sources. No objection seems to have been made to Adams'
authority, however, either because no one in the Province had the original reports
from which Nelson's work could be refuted, or because Adams' position was accepted
as good law despite dubious precedent. The jury returned a verdict for the defendants,
and Samuel Clap's estate was finally at rest.5

1. As to the English practice, see 12 Holdsworth, History of English Law 686–689, 695–697; Atkinson, “The Development of the Massachusetts Probate System,”
42 Mich. L. Rev. 425–426 (1943). The basic provision in Massachusetts was the Act of 1 Nov. 1692,
c. 14, 1 A&R 43–45, which provided that all lands held in fee might be disposed of by will and
that wills were to be submitted to probate under penalty of law. In the event of intestacy
administration of both realty and personalty was to be granted and supervised by the
judge of probate. Later provisions are summarized in Atkinson, “Massachusetts Probate
System,” 42 Mich. L. Rev. 440–447. Atkinson, id. at 445, states that the Act of 17 June 1723, c. 3, 2 A&R 284–285, gave the lands of the deceased directly to the heirs at death, thus removing
them from administration. The 1723 act, however, seems to provide only that an administrator
de bonis non (i.e. “of the goods not” administered by a previous administrator or executor), appointed
for a supplemental administration, was to have no power over unadministered real estate,
which descended to the heirs automatically. Subsequent legislation indicates that
the provisions of the 1692 act as to administration and distribution of realty by
the original administrator were not altered. See Act of 1 Jan. 1735, c. 16, 2 A&R 738; Act of 12 April 1750, c. 20, 3 A&R 495.

2. Under later Massachusetts law, a probate decree was conclusive in an action at law,
except as to matters of jurisdiction, such as lack of notice, which could be collaterally
attacked. See Smith v. Rice, 11 Mass. 507 (1814); Dublin v. Chadbourn, 16 Mass. 433, 441–442 (1820); Daniel A. White, A View of the Jurisdiction and Proceedings of the Court of Probate in Massachusetts 26–30 (Salem, Mass., 1822); Alger, “Conclusiveness of Decrees of a Domestic Probate
Court in Massachusetts,” 13 Harv. L. Rev. 192–193 (1899). That the probate decree was not conclusive is made more likely by
the fact that probate jurisdiction was by the Charter of 1691 vested in the Governor
and Council, who created the county courts solely by commission, without legislation.
It is thus possible that the probate courts were not considered “courts of record.”
See Coke, Littleton 260a.

3. Act of 14 July 1693, c. 8, §1, 1 A&R 122. For the will, see No. 15, note 1. The declaration set out

“a plea of partition, for that one Samuel Clap late of said Scituate yeoman deceased,
in his life time, in a time of peace, in the sixth year of our reign, was seized in
his demesne as of fee, of two parcels of land [description], taking the esplees thereof
to the amount of three pounds lawful money by the year. And on the eighth day of December
1766, the same Samuel dyed so seized at said Scituate, and intestate, leaving the
above named [defendants] his only surviving children, and the plaintiff, his grandson,
the only child of Michael Clap late of said Scituate yeoman deceased, who was the
eldest son of the said Samuel the intestate, and died on [the] tenth of June 2d. 1760.
Whereupon at the death of the said Samuel, the intestate, the premises by the law
of our province of the Massachusetts Bay, descended to the plaintiff [and the defendants],
the only heirs of the said Samuel the intestate, to wit two fifth parts thereof to
the plaintiff, the only child and legal representative of the said Michael, deceased,
the eldest son of the said intestate, and one fifth part thereof to [each of the defendants],
and they and the plaintiff are accordingly seized of the same two parcels of land
in their demesne as of fee, and do hold the same together in common and undivided.
Whereof it appertains that the plaintiff [and the defendants] ought to hold, possess,
and enjoy their respective parts thereof in severalty.... Yet [the defendants] tho'
often requested, do utterly refuse to divide or make partition of the same parcels
of land, that so they, and the plaintiff, may hold and enjoy their respective parts
and interest in the premises in severalty as aforesaid, contrary to the said law of
the said province in that case made and provided, and to the damage of the said Michael
Clap as he by his said guardian saith, the sum of forty pounds.” SF 142299.

Under the Province intestacy law (note 1 above) the eldest son took a double share. In England partition lay among coparceners
(cotenants by inheritance) at common law, and among joint tenants and tenants in common
by statute. See 6 Dane, Abridgment 478–480; 3 Holdsworth, History of English Law 19. The Province Act of 1693, 1 A&R 122, cited above, established the writ of partition as an action at law for all three
classes of cotenancy. Note that the declaration used here states the title of the
cotenants in the form followed in real actions, although it was apparently the rule
in partition that title could be stated briefly, as being “of the inheritance of”
the predecessor, since the action was for possession, not property. See Fitzherbert, New Natura Brevium 142 note (London, 1755); 16 Viner, Abridgment 240; see also Perham, American Precedents 313–314 (1802). As to the form in real actions, see Charles Jackson, A Treatise on the Pleadings and Practice in Real Actions 348 (Boston, 1828); No. 17, notes 4–64, 5, and 6; p. 36, notes 13, 1429, 30. Although in form the writ sought damages, it was the rule at common law that no
damages would be awarded, and that the judgment was in fact for partition. See 16
Viner, Abridgment 236–237, 240; 6 Dane, Abridgment 491. The procedure followed in this case is to be distinguished from the proceeding
by original petition in the Superior Court, provided by Act of 1 Feb. 1749, c. 12,
3 A&R 426–428. The latter was not an adversary proceeding, no provision being made for
trial of issues under it. In 1787 the defect was remedied by a provision for pleading
and trial to a jury in such cases. See 6 Dane, Abridgment 483.

4. See the pleadings in both courts and the Inferior Court judgment, in SF 142299. Adams' plea of not guilty in the Inferior Court was probably an informal
one designed to implement the sham demurrer which was evidently intended. See p. xlvi above. The plea was in general use for real actions in Massachusetts, and thus would
arguably have been proper in partition. See Joseph Story, A Selection of Pleadings in Civil Actions 333 (Salem, Mass., 1805). In this case, however, it might have been subject to the
logical flaw that it seemed to deny the refusal to partition. JA's Superior Court plea was in literal translation, “non tenent insimul,” a proper
plea in partition. See 5 Comyns, Digest 274; Coke, Littleton 167; compare 6 Dane, Abridgment 491.